PolitiFact published an explainer of the Trump ballot removal case before the Supreme Court. The Feb. 8, 2024 article had what we consider an ambiguous description of the Supreme Court case Bush v. Gore from 2000:
The last time the Supreme Court played such a pivotal role in the presidential race was in 2000, when the justices ruled 5-4 to end a Florida recount, sealing the election for George W. Bush over Al Gore.
The Florida Supreme Court had devised a recount that would include undervotes. “Undervote” refers to ballots where no vote for any candidate was tabulated, in this case president. The SCOTUS, by a 7-2 vote, ruled that the Florida Supreme Court’s remedy failed on equal protection grounds. “Overvote” refers to a ballot with at least two selections for a given office where the system only permits one choice. Florida law at the time excluded overvotes, but the Court [SCOTUS] reasoned that the they should be included in a recount if a voter’s intent could be discerned, as with undervotes. Florida law also lacked any standard for determining voter intent for either overvotes or undervotes.
Having found the Florida Supreme Court’s solution inadequate on equal protection grounds, the SCOTUS had to consider the follow-up question: Whether to permit the Florida Supreme Court another try at producing a recount framework that would avoid equal protection problems. The SCOTUS, in a 5-4 decision, ruled that the United States Constitution’s own safe harbor provision ought to close the door on that attempt:
The Supreme Court decision, in total, went against the Florida Supreme Court, remanding the case back to it for further action. But since the safe-harbor deadline was passed, Bush remained as the certified winner in Florida, and Gore conceded the next day.
PolitiFact’s account ambiguously fudges the facts. The 7-2 decision effectively stopped the existing Florida recount, as it had proceeded without any guiding standard offering equal protection assurances. A solution with a guiding standard would be a new recount.
Our clarification request to PolitiFact should have done a better job making that last point. In any case, PolitiFact appears to stand behind its ambiguous and misleading version.
Dear Truth-O-Meter,
Your Feb. 8, 2024 explainer on the Supreme Court’s consideration of efforts to remove Donald Trump from the state ballots leaves a misleading impression of the 2000 Bush v. Gore decision.
The last time the Supreme Court played such a pivotal role in the presidential race was in 2000, when the justices ruled 5-4 to end a Florida recount, sealing the election for George W. Bush over Al Gore.
The SCOTUS ruled 7-2 that the recount effort permitted by the Florida Supreme Court violated constitutional equal protection rights. The SCOTUS then ruled 5-4 that constitutional safe harbor nixed the idea of a new recount effort.
https://www.britannica.com/event/Bush-v-Gore/Majority-opinion
For context, it wouldn’t hurt to add information about the consortium effort that found Bush likely to win if a recount had taken place under guidelines likely to avoid equal protection concerns.
A comprehensive review of the uncounted Florida ballots from last year’s presidential election reveals that George W. Bush would have won even if the United States Supreme Court had allowed the statewide manual recount.
https://www.nytimes.com/2001/11/12/us/examining-vote-overview-study-disputed-florida-ballots-finds-justices-did-not.html
Thanks for your attention to this matter.
A false narrative has grown around the Bush v. Gore decision, and your explainer reinforces a misinformed view about the decision. A person thinking the SCOTUS, voting on partisan lines, simply awarded the presidency to Bush would see nothing in your fact check to challenge that notion.
https://www.nationalreview.com/2017/05/bush-v-gore-fake-news-fake-history/